[Federal Register Volume 72, Number 174 (Monday, September 10, 2007)]
[Proposed Rules]
[Pages 51572-51574]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-17722]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 72, No. 174 / Monday, September 10, 2007 / 
Proposed Rules

[[Page 51572]]



TENNESSEE VALLEY AUTHORITY

18 CFR Part 1301


Testimony by TVA Employees, Production of Official Records, and 
Disclosure of Official Information in Legal Proceedings

AGENCY: Tennessee Valley Authority (TVA).

ACTION: Proposed rule; comment request.

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SUMMARY: The Tennessee Valley Authority (``TVA'') seeks public comment 
on a proposed rule that would govern access to TVA information and 
records in connection with legal proceedings in which neither the 
United States nor TVA is a party. The rule, tracking similar 
regulations issued by many other federal agencies, would establish 
guidelines for use in determining whether TVA employees will provide 
testimony or records relating to their official duties. The rule would 
also establish procedures for requesters to follow when making demands 
on or requests to a TVA employee for official documents or to provide 
testimony. The proposed rule will standardize TVA's past practices, 
promote uniformity in decisions, conserve the ability of TVA to conduct 
official business, preserve its employee resources, protect 
confidential information, provide guidance to requestors, minimize 
involvement in matters unrelated to TVA's mission and programs, avoid 
wasteful allocation of agency resources, and avoid spending public time 
and money for private purpose.

DATES: Comments must be received on or before October 10, 2007.

ADDRESSES: Send or deliver comments to the Office of the General 
Counsel, Tennessee Valley Authority, 400 W. Summit Hill Drive, 
Knoxville, Tennessee 37902 by mail or fax at (865) 632-4528. Comments 
may also be submitted electronically to npgoschy@tva.gov, with subject 
heading ``Comment on Proposed Regulation.''

FOR FURTHER INFORMATION CONTACT: Nicholas P. Goschy, Assistant General 
Counsel, Tennessee Valley Authority, 400 W. Summit Hill Drive, 
Knoxville, Tennessee 37902, (865) 632-8960.

SUPPLEMENTARY INFORMATION:

Background

    TVA regularly receives subpoenas and other informal requests for 
documents and requests for TVA employees to provide testimony or 
evidence in cases in which TVA is not a party. Sometimes these 
subpoenas or requests are for TVA records that are not available to the 
public under the Freedom of Information Act. TVA also receives requests 
for TVA employees to appear as witnesses in litigation and to provide 
testimony relating to materials contained in TVA's official records or 
provide testimony or information acquired during the performance of the 
employees' official duties.
    Although many other Federal agencies currently have regulations in 
place to address these types of requests, and TVA itself has rules 
implementing the Freedom of Information Act that govern requests for 
information from the general public, TVA currently has no official 
regulations governing subpoenas and other information requests for 
document production and testimony of TVA employees in legal 
proceedings. Issues about such requests that have arisen in recent 
years warrant adoption of regulations governing their submission, 
evaluation, and processing. Responding to these requests is not only 
burdensome, but may also result in a significant disruption of a TVA 
employee's work schedule and possibly involve TVA in issues unrelated 
to its responsibilities. In order to resolve these issues, many 
agencies have issued regulations, similar to the proposed regulation, 
governing the circumstances and manner in which an employee may respond 
to demands for testimony or for the production of documents. 
Establishing uniform procedures for legal processes will ensure timely 
notice and promote centralized decision making. The United States 
Supreme Court upheld this type of regulation in United States ex rel. 
Touhy v. Ragen, 340 U.S. 462 (1951).
    The proposed rule will formalize those past practices already 
utilized by TVA in responding to these types of requests when TVA is a 
not a party to the litigation. Briefly summarized, the proposed rule 
will prohibit disclosure of official records or testimony by TVA's 
employees, as defined in Sec.  1301.52, unless there is compliance with 
the rule. The proposed rule sets out the information that requesters 
must provide and the factors that TVA will consider in making 
determinations in response to requests for testimony or the production 
of documents. The proposed rule sets forth TVA's standard practice of 
providing employee testimony by affidavit only and clarifies those 
steps requesters must follow in order to obtain official TVA documents, 
including how to accomplish service of process on TVA. The rule 
establishes a new practice that service can now be accomplished by 
United States mail.
    This rule applies to a range of matters in any legal proceeding in 
which TVA is not a named party. Current and former TVA employees will 
not provide testimony about specific matters involving information 
which they acquired during the performance of their official duties 
unless permitted to testify as provided in the rule. They would not be 
restricted from providing testimony on their own time about general 
matters unconnected with the specific TVA matters.
    This rule will ensure a more efficient use of TVA's resources, 
minimize the possibility of involving TVA in issues unrelated to its 
responsibilities, promote uniformity in responding to such subpoenas 
and like requests, and maintain the impartiality of TVA in matters that 
are in dispute between other parties. It will also serve TVA's interest 
in protecting sensitive, confidential, and privileged information and 
records that are generated in fulfillment of TVA's statutory 
responsibilities.
    This rule is internal and procedural rather than substantive. It 
does not create a right to obtain official records or the official 
testimony of a TVA employee nor does it create any additional right or 
privilege not already available to TVA to deny any demand or request 
for testimony or documents. Failure to comply with the procedures set 
out in these regulations would be a basis for denying a demand or 
request submitted to TVA.

[[Page 51573]]

List of Subjects in 18 CFR Part 1301

    Administrative practice and procedure.
    For the reasons stated in the preamble, TVA proposes to amend 18 
CFR Chapter XIII, to read as follows:

PART 1301--PROCEDURES

    1. The authority citation for part 1301 continues to read as 
follows:


    Authority: 16 U.S.C. 831-831ee, 5 U.S.C. 552.
    2. Part 1301 is amended by adding subpart D to read as follows:
Subpart D--Testimony by TVA Employees, Production of Official Records, 
and Disclosure of Official Information in Legal Proceedings
Sec.
1301.51 Purpose and scope.
1301.52 Definitions.
1301.53 General.
1301.54 Requirements for a demand for records or testimony.
1301.55 Responding to demands.
1301.56 Final determination.
1301.57 Waiver.

Subpart D--Testimony by TVA Employees, Production of Official 
Records, and Disclosure of Official Information in Legal 
Proceedings


Sec.  1301.51  Purpose and scope.

    (a) Purpose. This part sets forth the procedures to be followed 
when TVA or a TVA employee is served with a demand to provide testimony 
and/or produce or disclose official information or records in a legal 
proceeding in which TVA or the United States is not a party, and where 
such appearance arises out of, or is related to, the individual's 
employment with TVA.
    (b) Scope. This part applies when, in a judicial, administrative, 
legislative, or other legal proceeding, a TVA employee is served with a 
demand to provide testimony concerning information acquired in the 
course of performing official duties or because of official status and/
or to produce official information and/or records.


Sec.  1301.52  Definitions.

    The following definitions apply to this part:
    (a) Appearance means testimony or production of documents or other 
material, including an affidavit, deposition, interrogatory, 
declaration, or other required written submission.
    (b) Demand means a subpoena, order, or other demand of a court of 
competent jurisdiction, or other specific authority (e.g. an 
administrative or State legislative body), for the production, 
disclosure, or release of TVA records or information or for the 
appearance of TVA personnel as witnesses in their official capacities.
    (c) Employee means any members of the Board of Directors, 
officials, officers, directors, employees or agents of TVA, except as 
TVA may otherwise determine in a particular case, and includes former 
TVA employees to the extent that the information sought was acquired in 
the performance of official duties for TVA.
    (d) General Counsel means the General Counsel of TVA or a person to 
whom the General Counsel has delegated authority under this part.
    (e) Legal proceeding means any and all pre-trial, trial, and post-
trial stages of all judicial or administrative actions, hearings, 
investigations, or similar proceedings before courts, commissions, 
boards, or other judicial or quasi-judicial bodies or tribunals, 
whether criminal, civil, or administrative in nature.
    (f) Records or official records and information means all 
information in the custody and control of TVA, relating to information 
in the custody and control of TVA, or acquired by a TVA employee in 
performance of his or her official duties or because of his or her 
official status while the individual was employed by TVA.
    (g) Testimony means any written or oral statements, including 
depositions, answers to interrogatories, affidavits, declarations, 
interviews, and statements made by an individual in connection with a 
legal proceeding.


Sec.  1301.53  General.

    (a) No employee shall appear, in response to a demand for official 
records or information, in any proceeding to which this part applies to 
provide testimony and/or produce records or other official information 
without prior authorization as set forth in this part.
    (b) This part is intended only to provide procedures for responding 
to demands for testimony or production of records or other official 
information, and is not intended to, does not, and may not be relied 
upon to, create any right or benefit, substantive or procedural, 
enforceable by any party against TVA and the United States.


Sec.  1301.54  Requirements for a demand for records or testimony.

    (a) Service of demands. Only TVA's General Counsel or his/her 
designee is authorized to receive and accept demands sought to be 
served upon TVA or its employees. All such documents should be 
delivered in person or by United States mail to the Office of the 
General Counsel, Tennessee Valley Authority, 400 W. Summit Hill Drive, 
Knoxville, Tennessee 37902.
    (b) Time limit for serving demands. The demand must be served at 
least 30 days prior to the scheduled date of testimony or disclosure of 
records, in order to ensure that the General Counsel has adequate time 
to consider the demand and prepare a response, except in cases of 
routine requests for personnel and payroll records located on-site in 
Knoxville, where service 15 days prior will normally be considered 
sufficient. The General Counsel may, upon request and for good cause 
shown, waive the requirement of this paragraph.
    (c) Form of Demand. A demand for testimony or production of records 
or other official information must comply with the following 
requirements:
    (1) The demand must be in writing and submitted to the General 
Counsel.
    (2) The demand must include the following information:
    (i) The caption of the legal proceeding, docket number, and name 
and address of the court or other authority involved.
    (ii) If production or records or other official information is 
sought, a list of categories of records sought, a detailed description 
of how the information sought is relevant to the issues in the legal 
proceeding, and a specific description of the substance of the records 
sought.
    (iii) If testimony is sought, a description of the intended use of 
the testimony, a detailed description of how the testimony sought is 
relevant to the issues in the legal proceeding, and a specific 
description of the substance of the testimony sought.
    (iv) A statement as to how the need for the information outweighs 
any need to maintain the confidentiality of the information and 
outweighs the burden on TVA to produce the documents or testimony.
    (v) A statement indicating that the information sought is not 
available from another source, from other persons or entities, or from 
the testimony of someone other than a TVA employee, such as a retained 
expert.
    (vi) The name, address, and telephone number of counsel to each 
party in the case.
    (d) TVA reserves the right to require additional information to 
complete the request where appropriate or to waive any of the 
requirements of this section at its sole discretion.


Sec.  1301.55  Responding to demands.

    Generally, authorization to provide the requested material or 
testimony shall not be withheld unless their disclosure is prohibited 
by law or for

[[Page 51574]]

other compelling reasons, provided the request is reasonable and in 
compliance with the requirements of this part, and subject to the 
following conditions:
    (a) Demands for testimony. TVA's practice is to provide requested 
testimony of TVA employees by affidavit only. TVA will provide 
affidavit testimony in response to demands for such testimony, provided 
all requirements of this part are met and there is no compelling factor 
under paragraph (c) of this section that requires the testimony to be 
withheld. The General Counsel may waive this restriction when 
necessary.
    (b) Demands for production of records or official information. 
TVA's practice is to provide requested records or official information, 
provided all requirements of this part are met and there is no 
compelling factor under paragraph (c) of this section that requires the 
records or official information to be withheld.
    (c) Factors to be considered in determining whether requested 
testimony or records or official information must be withheld. The 
General Counsel shall consider the following factors, among others, in 
deciding whether requested testimony or materials must be withheld:
    (1) Whether production is appropriate in light of any relevant 
privilege;
    (2) Whether production is appropriate under the applicable rules of 
discovery or the procedures governing the case or matter in which the 
demand arose;
    (3) Whether the material requested is relevant to the matter at 
issue;
    (4) Whether allowing such testimony or production of records would 
be necessary to prevent a miscarriage of justice;
    (5) Whether disclosure would violate a statute, Executive Order, or 
regulation, including, but not limited to, the Privacy Act of 1974, as 
amended, 5 U.S.C. 552a;
    (6) Whether disclosure would impede or interfere with an ongoing 
law enforcement investigation or proceeding, or compromise 
constitutional rights or national security interests;
    (7) Whether disclosure would improperly reveal trade secrets or 
proprietary confidential information without the owner's consent;
    (8) Whether disclosure would unduly interfere with the orderly 
conduct of TVA's functions;
    (9) Whether the records or testimony can be obtained from other 
sources;
    (10) Whether disclosure would result in TVA appearing to favor one 
litigant over another;
    (11) Whether the demand or request is within the authority of the 
party making it; and
    (12) Whether a substantial Government interest is implicated.
    (d) Restrictions on testimony or production of records or official 
information. When necessary or appropriate, the General Counsel may 
impose restrictions or conditions on the production of testimony or 
records or official information. These restrictions may include, but 
are not limited to:
    (1) Limiting the area of testimony;
    (2) Requiring that the requester and other parties to the legal 
proceeding agree to keep the testimony under seal;
    (3) Requiring that the testimony be used or made available only in 
the legal proceeding for which it was requested;
    (4) Requiring that the parties to the legal proceeding obtain a 
protective order or execute a confidentiality agreement to limit access 
and any further disclosure of produced records or official information.
    (e) Fees for Production. Fees will be charged for production of TVA 
records and information. The fees will be the same as those charged by 
TVA pursuant to its Freedom of Information Act regulations, 16 CFR. 
1301.10.


Sec.  1301.56  Final determination.

    The General Counsel makes the final determination whether a demand 
for testimony or production of records or official testimony in a legal 
proceeding in which TVA is not a party shall be granted. All final 
determinations are within the sole discretion of the General Counsel. 
The General Counsel will notify the requesting party and, when 
necessary, the court or other authority of the final determination, the 
reasons for the grant or denial of the request, and any conditions that 
the General Counsel may impose on the production of testimony or 
records or official information.


Sec.  1301.57  Waiver.

    The General Counsel may grant a waiver of any procedure described 
by this part where a waiver is considered necessary to promote a 
significant interest of TVA or the United States, or for other good 
cause.

Maureen H. Dunn,
General Counsel.
 [FR Doc. E7-17722 Filed 9-7-07; 8:45 am]
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